Buttarelli v Perpetual Ltd - [2013] WASCA 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BUTTARELLI -v- PERPETUAL LTD [2013] WASCA 160

CORAM: PULLIN JA
MURPHY JA

HEARD: 21 JUNE 2013

DELIVERED : 21 JUNE 2013

PUBLISHED : 5 JULY 2013

FILE NO/S: CACV 15 of 2013

BETWEEN: VINCENZA PALMA BUTTARELLI
Appellant
AND
PERPETUAL LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :CORBOY J
Citation  :PERPETUAL LTD -v- BUTTARELLI [2012] WASC 512
File No  :CIV 1506 of 2008

Catchwords:

Mortgagee action - Application for a stay of judgment which dismissed an application for a stay - Failure to file appellant's case

Legislation:

Supreme Court (Court of Appeal) Rules (WA), s 43(2)(g)(ii)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr E M Heenan

Solicitors:

Appellant: In person
Respondent: Talbot Olivier

Case(s) referred to in judgment(s):

Perpetual Ltd v Buttarelli [2012] WASC 512
Perpetual Ltd v Buttarelli [No 2] [2013] WASC 190

REASONS OF THE COURT: On 21 June 2013, the court made orders dismissing the appeal with reasons to follow. These are the reasons.
The court heard the appellant's application for a stay of execution of the judgment against which the appellant was appealing and also dealt with the registrar's notice to attend dated 13 June 2013, which required the appellant to show cause:
why the appeal should not be dismissed under rule 43(2)(g)(ii) for failure to obey the Supreme Court (Court of Appeal) Rules 2005 or an order made under them.

The appellant's stay application in this court

The appellant's stay application was dated 30 May 2013 and filed on 31 May 2013. In that document, the appellant applied for:
a stay of all orders made including costs on 17 May 2013 by Justice Corboy on CIV 1506 of 2008 to allow stay of these orders until after appeal CACV 15 of 2013 has been heard and determination made …
The orders made by Corboy J on 17 May 2013 read:
1.The [appellant's] application for a stay/suspension order pending the determination of her appeal by undated chamber summons is dismissed.
2.Paragraph 4 of the orders made by Justice Corboy on 26 March 2013 and 16 April 2013, be varied so that each of paragraphs 1 to 3 of the orders are to take effect at 4pm on Friday 7 June 2013.
3.The [appellant] pay the costs of the application for stay application to the [respondent] to be taxed if not agreed.
The effect of par 2 was that the dismissal of interim suspension orders, which had been granted at an earlier time, would be set aside as from Friday 7 June 2013.

The appellant's stay application before Corboy J

In May 2012, the appellant applied to Corboy J for a stay or suspension of a judgment of Master Sanderson dated 11 November 2010. By that judgment, the master ordered the appellant to deliver up possession of a property (Bedford property) which provided security to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buttarelli v Perpetual Ltd

Details

AGLC: Buttarelli v Perpetual Ltd [2013] WASCA 160
Case: [2013] WASCA 160
Decision Date: 5 JULY 2013

CaseChat Overview and Summary

The case of Buttarelli v Perpetual Ltd involved a dispute over a mortgagee action where the primary issue was whether a stay of judgment should be granted. The matter was heard in the Supreme Court of New South Wales. The dispute arose when the plaintiff, Buttarelli, sought a stay of judgment against the defendant, Perpetual Ltd, which had dismissed an application for a stay. The central legal issue was whether the court should grant a stay of judgment to allow for the filing of the appellant's case, which had not been submitted in a timely manner.

The court considered the principles governing the stay of judgment and the necessity for compliance with procedural requirements. It was imperative to examine whether the failure to file the appellant's case was due to any fault or negligence on the part of the appellant. The court also weighed the potential prejudice to both parties if the stay was granted, alongside the importance of maintaining the integrity of the judicial process.

The Supreme Court ultimately determined that the failure to file the appellant's case was not excusable, and thus the application for a stay of judgment was dismissed. The court found that the appellant had not provided a satisfactory explanation for the delay, and the potential prejudice to the respondent outweighed any benefit of granting a stay. Consequently, the court upheld the earlier dismissal of the stay application and refused to intervene in the matter. The court's decision reinforced the importance of timely compliance with procedural obligations in legal proceedings.

Orders